Summary: Ms X complained about the Council’s refusal to begin planning enforcement action against her neighbour, who she alleges is unlawfully running a business in breach of planning controls. Ms X says the business causes noise which disturbs her and causes distress. There is no evidence of fault in the decision-making process.

The complaint

1. Ms X complained about the Council’s decision not to serve a Planning Contravention Notice on her neighbour, who she alleges is running a business from his home.
2. Ms X says the Council’s failure to act has caused her stress and anxiety from being forced to live in a noisy environment.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

5. I read the complaint and discussed it with Ms X. I read the Council’s response to the complaint and other information provided by Ms X, including photos and responses to enquiries she made to other planning authorities.
6. I gave the Council and Ms X an opportunity to comment on the draft of this decision and took account of the comments I received.

Back to top

What I found

Planning enforcement powers

7. Planning permission is often required for the change of use of land. The courts have made it clear that the question of whether a planning use has occurred is a matter of fact and degree, and for the local planning authority to decide.
8. Where a breach of planning control is found, councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
9. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

What happened

10. Ms X complained about her neighbour who lives opposite her home. She would like the Council to serve a Planning Contravention Notice (PCN) on her neighbour because she believes his business is in breach of planning controls.
11. The Council considered the information Ms X provided and decided not to serve a PCN.
12. Ms X has made enquiries of many planning authorities, asking them whether a breach of planning control had taken place. She believes their responses show that her Council should take enforcement action to protect her.

My findings

13. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and when we find it, we decide whether it caused an injustice to the complainant.
14. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
15. Ms X believes other authorities would have made a different decision, but we cannot agree or disagree with a planning judgement in the absence of fault in the decision-making process. We are not an appeal body and cannot make a judgement and decide which planning opinion we prefer.
16. The Council has considered the information Ms X has provided and decided not to serve a PCN. The Council followed the decision-making process we expect and so I find no fault.

Final decision

17. I completed my investigation as there was no fault in the decision-making process.

Back to top

Investigator's decision on behalf of the Ombudsman